5.  The applicant was born in 1960 and lives in Izmir.
6.  On 3 September 2007 at around 8.10 p.m. the applicant was shot by officers from a gendarmerie special operations team immediately after he and his brother left a neighbouring house in the vicinity of their hamlet, Gölek, in the district of Mazgirt, in Tunceli, south-east Turkey.
7.  As a result of the shooting, the applicant was hit with a total of eight bullets and suffered injuries to his arms, his legs, and his left shoulder. According to a medical report issued by the Forensic Medicine Department of Fırat University dated 13 November 2007, the injuries that the applicant sustained were life-threatening. According to the report, the applicant received medical treatment and underwent surgical operations at the cardiac surgery units at the Elazığ Military Hospital and the Fırat University Hospital between 3 and 19 September 2007. He was then transferred to the Ege University Hospital in Izmir upon the request of his family members. A further medical report issued on 27 June 2011 by a board of doctors from the Karşıyaka State Hospital stated that the applicant was experiencing difficulties in walking and using his left shoulder as a result of firearm injuries. In particular, he had suffered a 48% loss of function in his legs and a 10% loss of function in his left shoulder. According to the report, the applicant was permanently disabled and only able to walk with the aid of two crutches. The applicant’s brother was not injured during the shooting.
8.  On 4 September 2007 a crime scene investigation was carried out by gendarmerie officers from the Tunceli Provincial Gendarmerie Command, who then drafted a crime scene report. The report was signed by six gendarmerie officers, including İ.S. and M.K., who had taken part in the operation of 3 September 2007. The report drafted by the officers stated that the special operations team had received information that members of the PKK[1], an illegal organisation, would be going to the house where the applicant and his brother had gone. The information had been given by B.B., the son of M.B., the owner of the house, who had been threatened by members of the PKK. The security forces began search and detection activities in the region at around 3.30 a.m. after the receipt of this information and at 3.30 p.m. the commander of the operation, together with two team commanders, identified four points in the vicinity of M.B.’s house at which the officers could position themselves. At around 7.40 p.m. gendarmerie officers arrived in the vicinity, took up position at the four different points identified earlier by their commanders and waited for PKK members. The applicant and his brother arrived at the house at 8 p.m. and left at 8.10 p.m. When they had left the house, E.Ö. and G.A., officers positioned at point no. 3 who had a thermal camera and a night vision device, informed the commander of the operation, İ.S., who was positioned at point no. 2, that the applicant and his brother might have weapons on them. They also informed the commander that the applicant and his brother were acting suspiciously and that they had checked the area around the house with their torches and then turned them off. The team commander subsequently asked M.A. and Y.S., officers who were positioned at the same point and who had thermal cameras, whether the applicant and his brother were carrying weapons. The officers informed the commander that the applicant and his brother had objects in their hands which looked like weapons. The team commander then ordered the applicant and his brother to stop when they were 60 metres away. As they failed to do so, officers first fired warning shots in the air (3-5 shots) and then opened fire in the direction of the applicant and his brother (13-14 shots) towards their feet. They stopped firing when the applicant and his brother shouted that they were villagers. The report further stated that when the officers approached the applicant and his brother and found that the former was wounded, they gave him first aid straight away and the applicant was transferred to Elazığ Military Hospital by helicopter. According to the report, a total of twenty‑six spent bullet cases were found where the officers had been located and there was a distance of 15 to 30 metres between the officers and the applicant and his brother.
9.  A gendarmerie officer also drew a sketch of the scene, according to which the applicant was 60 metres away from M.B.’s house and 15 and 30 metres away from points no. 2 and 1, respectively, where spent bullet cases had been found.
10.  On an unspecified date the applicant and his brother lodged a complaint against the gendarmerie officers who had been responsible for the applicant’s shooting. The Mazgirt Public Prosecutor subsequently initiated an investigation against six gendarmerie officers on a charge of exceeding the limits of their powers in resorting to force.
11.  On 6 September 2007 the Mazgirt Public Prosecutor took statements from the applicant’s brother, S.T. He submitted that they had gone to M.B.’s house because they had wished to inform his son, B.B., that their mother would not be going to the town centre with him the next day. S.T. further maintained that they had walked with their torches on and that there had been no warning or warning shots before the shooting. He contended that when the shooting had started, he had been 1-2 metres behind his brother. They had both thrown themselves on the ground when the shooting had started.
12.  On 6 and 13 September 2007 the public prosecutor obtained statements from B.B. and M.B., the occupants of the house, respectively. They both maintained that they had informed the security forces of the threats that M.B. had received. B.B. further contended that he had seen the applicant’s mother at around 5 p.m. on the same day and that she had asked him to take her to the town centre the next day. B.B. and M.B. stated that the applicant and his brother had come to their house in order to tell them that their mother would not be going to the town centre with B.B after all and that they had subsequently left. B.B. maintained that he had been surprised when he first saw the applicant and S.T., given that their visit had occurred after sunset. B.B. further noted that he had told the applicant and S.T. to turn their torches on when they left and that they had said “OK”. M.B. maintained that the applicant and his brother had had lit torches in their hands when they had arrived at his house. He also contended that the gunfire had started 2-3 minutes after the applicant and his brother had left; that it had lasted a few minutes; and that at the same time as the gunfire he had heard the applicant and S.T. shouting “We are villagers. Do not fire.” M.B. submitted that his house had also been hit by bullets.
13.  On 11 September 2007 the Mazgirt Public Prosecutor took statements from a number of gendarmerie officers who had been involved in the operation of 3 September 2007.  İ.S., the team commander, maintained before the public prosecutor that they had started the operation upon receipt of information that terrorists would be going to M.B.’s house. He noted that a total of twenty-six gendarmerie officers had taken part in the operation. He further contended that E.Ö. and G.A. had informed him that there had been a flash of light from an object carried on the shoulder of one of the suspects which extended to hip level. He further stated that M.A. and Y.S. had also informed him that one suspect was carrying an object that extended from the shoulder to the hip. The commander maintained that the applicant and his brother had come within 10 metres of the point where they were positioned when he shouted at them to stop. According to the commander, the applicant and his brother had failed to stop despite the warning and had attempted to escape when they heard the warning shots. At that point he instructed the officers to open fire. İ.S. noted that a total of five officers had fired towards their feet and that they had stopped firing when the applicant had been shot and his brother had shouted that they were villagers. İ.S. lastly contended that the applicant’s injuries had been his own fault and that they had not intended to kill the applicant or his brother. According to İ.S., if they had intended to kill them, neither the applicant nor his brother would have survived.
14.  In their statements before the public prosecutor, E.Ö. and G.A. maintained that they had seen the applicant and his brother by using a night vision device and a thermal camera while the suspects were walking towards M.B.’s house. They had observed that the suspects had stopped when they were close to the house and had remained kneeling down for a while before entering into the house. They further maintained that they had seen shiny objects on the suspects’ shoulders. The officers noted that when they had left the house the suspects had lit their torches, had pointed them towards the path that they would take and had then turned them off. The officers had informed İ.S. of the aforementioned observations and had considered that the suspects might have been sending a message to another group in the area with their torches. They had then heard İ.S. ordering the suspects to stop and had subsequently heard firing for around five seconds.
15.  M.A., Y.S., and three other officers, R.E., B.B.A and M.K., in almost identical statements before the Mazgirt Public Prosecutor, maintained that İ.S. had told them that officers from another position had informed him that one of the two suspects was carrying an object on his shoulder which extended to hip level. Y.S. and M.K. further noted that they had also received this information through their radio transmitters. They further stated that the applicant and his brother had attempted to run away when their commander had told them to stop. As the suspects had not complied with the commander’s instruction, they had first fired warning shots and had then opened fire towards the suspects’ feet. They had stopped firing when one of the suspects had shouted that they were villagers a few seconds later. They maintained that it had been dark when the shootings occurred and that the applicant and his brother had not had lit torches with them. They stated that the applicant had been wounded because of his own conduct and that they would not have opened fire if the applicant and his brother had stopped in the first place. According to these five officers, the applicant must have been shot in the shoulder after falling to the ground upon being shot in the legs. They lastly contended that they had not intended to kill the applicant or his brother and that if they had had that intention, neither the applicant nor his brother would have survived.
16.  In their statements before the public prosecutor, Ş.Y. and A.Ş., two officers who had been positioned at the farthest point from the house, stated that they had not heard their commander give the order to stop, as it had been impossible due to the distance between them, and that they had heard gunfire for a few seconds. They had also heard their commander’s instruction to hold fire over the radio transmitter.
17.  On 13 September 2007 the Mazgirt Public Prosecutor held an onsite inspection in Gölek. The public prosecutor observed the area where the applicant had been shot and heard İ.S., M.K. and A.Ş., who reiterated their statements given on 11 September 2007. During the inspection, a gendarmerie officer took photographs of the area under the instructions of the Mazgirt Public Prosecutor.
18.  On 1 February 2008 the Mazgirt Public Prosecutor decided that his office did not have jurisdiction over the prosecution, given that the suspects had allegedly committed the offence of excessive use of force. The Mazgirt Public Prosecutor then sent the investigation file to the Elazığ Military Prosecutor’s Office.
19.  On 31 December 2008 the Elazığ Military Prosecutor decided not to bring criminal proceedings against the six gendarmerie officers. The military prosecutor noted that the applicant had stated that he and his brother had had their torches on when he had been shot and that there had been hundreds of shots. The prosecutor found these claims unfounded, considering that at the time of the shootings night had not entirely fallen and that it would not therefore have been reasonable to have torches switched on. In the light of the statements of the applicant and his brother that they had not at first realised that they were being targeted and had only thrown themselves to the ground after the shooting had started, the prosecutor considered that the accused officers had not fired directly towards the applicant and his brother. The prosecutor further noted that the applicant’s brother, M.B. and B.B. had all stated that the officers had fired because they had considered the applicant and his brother to be terrorists, a statement which was in line with the accused officers’ defence submissions. According to the prosecutor, the manner in which the applicant and his brother had acted (staying in the house only for 5 minutes, leaving the house without the hosts coming out of the house, keeping a distance between them and turning their torches off while walking) had justified the officers’ suspicions that they were terrorists. The prosecutor further noted that, had there been hundreds of shots fired, the applicant’s brother would also have been injured. The prosecutor considered that it had been reasonable for the gendarmerie officers to think that the torches had been weapons as it had been dark and because the torches, whose dimensions were 25 cm x 15 cm, had not been switched on, and that the information given to the security forces had corresponded to the circumstances as they unfolded. The military prosecutor finally found it established that gendarmerie officers had fired towards the ground and towards the feet of the applicant, whom they had considered to be a terrorist, and with a view to effecting his arrest in accordance with the law. He therefore concluded that the officers had not been at fault and had not used excessive force.
20.  On an unspecified date the applicant lodged an objection against the decision of the military prosecutor.
21.  On 6 April 2009 the Malatya Military Court upheld the Elazığ Military Prosecutor’s reasoning and dismissed the applicant’s objection.